Senate Bill No. 734
(By Senators Wooton, Hunter, Minard and Ross)
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[Originating in the Committee on the Judiciary;
reported February 27, 2002.]
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A BILL to amend and reenact section twenty-three, article three,
chapter twenty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to surface coal
mining and reclamation; and establishing requirements for bond
release.
Be it enacted by the Legislature of West Virginia:
That section twenty-three, article three, chapter twenty-two
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-23. Release of bond or deposits; application; notice; duties
of secretary; public hearings; final maps on grade release.
(a) The permittee may file a request with the
director
secretary for the release of a bond or deposit. The permittee shall publish an advertisement regarding the request for release in
the same manner as is required of advertisements for permit
applications. A copy of the advertisement shall be submitted to
the
director secretary as part of any bond release application and
shall contain a notification of the precise location of the land
affected, the number of acres, the permit and the date approved,
the amount of the bond filed and the portion sought to be released,
the type and appropriate dates of reclamation work performed and a
description of the results achieved as they relate to the
permittee's approved reclamation plan. In addition, as part of any
bond release application, the permittee shall submit copies of
letters which the permittee has sent to adjoining property owners,
local government bodies, planning agencies, sewage and water
treatment authorities or water companies in the locality in which
the surface mining operation is located, notifying them of the
permittee's intention to seek release from the bond. Any request
for grade release shall also be accompanied by final maps.
(b) Upon receipt of the application for bond release, the
director secretary, within thirty days, taking into consideration
existing weather conditions, shall conduct an inspection and
evaluation of the reclamation work involved. The evaluation shall
consider, among other things, the degree of difficulty to complete
any remaining reclamation, whether pollution of surface and
subsurface water is occurring, the probability of continuance or
future occurrence of the pollution and the estimated cost of abating the pollution. The
director secretary shall notify the
permittee in writing of his or her decision to release or not to
release all or part of the bond or deposit within sixty days from
the date of the initial publication of the advertisement if no
public hearing is requested. If a public hearing is held, the
director's secretary's decision shall be issued within thirty days
thereafter.
(c) If the
director secretary is satisfied that reclamation
covered by the bond or deposit or portion thereof has been
accomplished as required by this article, he or she may release the
bond or deposit, in whole or in part, according to the following
schedule:
(1) For all operations except those with an approved variance
from approximate original contour:
(A) When the operator completes the backfilling, regrading and
drainage control of a bonded area in accordance with the operator's
approved reclamation plan, the release of sixty percent of the bond
or collateral for the applicable bonded area:
Provided, That a
minimum bond of ten thousand dollars shall be retained after grade
release;
(B) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the release
of an additional twenty-five percent of the bond or collateral for the applicable bonded area:
Provided, That a minimum bond of ten
thousand dollars shall be retained after the release provided for
in this subdivision; and
(C) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen of
this article:
Provided, That the revegetation has been established
on the regraded mined lands in accordance with the approved
reclamation plan
: Provided, however, That the release may be made
where the quality of the untreated post-mining water discharged is
better than or equal to the premining water quality discharged from
the mining site.
(2) For operations with an approved variance from approximate
original contour:
(A) When the operator completes the backfilling, regrading and
drainage control of a bonded area in accordance with the operator's
approved reclamation plan, the release of fifty percent of the bond
or collateral for the applicable bonded area:
Provided, That a
minimum bond of ten thousand dollars shall be retained after grade
release;
(B) Two years after the last augmented seeding, fertilizing,
irrigation or other work to ensure compliance with subdivision
(19), subsection (b), section thirteen of this article, the release of an additional ten percent of the bond or collateral for the
applicable bonded area:
Provided, That a minimum bond of ten
thousand dollars shall be retained after the release provided for
in this subdivision; and
(C) When the operator has completed successfully all surface
mining and reclamation activities, the release of the remaining
portion of the bond, but not before the expiration of the period
specified in subdivision (20), subsection (b), section thirteen of
this article:
Provided, That the revegetation has been established
on the regraded mined lands in accordance with the approved
reclamation plan and if applicable the necessary post-mining
infrastructure is established and any necessary financing is
completed
: Provided, however, That the release may be made where
the quality of the untreated post-mining water discharged is better
than or equal to the premining water quality discharged from the
mining site.
No part of the bond or deposit may be released under this
subsection so long as the lands to which the release would be
applicable are contributing additional suspended solids to
streamflow or runoff outside the permit area in excess of the
requirements set by section thirteen of this article, or until soil
productivity for prime farmlands has returned to equivalent levels
of yield as nonmined land of the same soil type in the surrounding
area under equivalent management practices as determined from the soil survey performed pursuant to section nine of this article.
Where a sediment dam is to be retained as a permanent impoundment
pursuant to section thirteen of this article, or where a road or
minor deviation is to be retained for sound future maintenance of
the operation, the portion of the bond may be released under this
subsection so long as provisions for sound future maintenance by
the operator or the landowner have been made with the
director
secretary.
Notwithstanding the bond release scheduling provisions of
subdivisions (1), (2) and (3) of this subsection, if the operator
completes the backfilling and reclamation in accordance with an
approved post-mining land use plan that has been approved by the
division department of environmental protection and accepted by a
local or regional economic development or planning agency for the
county or region in which the operation is located, provisions for
sound future maintenance are assured by the local or regional
economic development or planning agency, and the quality of any
untreated post-mining water discharge complies with applicable
water quality criteria for bond release, the
director secretary may
release the entire amount of the bond or deposit. The
director
secretary shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to govern a bond release pursuant to the terms
of this paragraph.
(d) If the
director secretary disapproves the application for release of the bond or portion thereof, the
director secretary
shall notify the permittee, in writing, stating the reasons for
disapproval and recommending corrective actions necessary to secure
the release and notifying the operator of the right to a hearing.
(e) When any application for total or partial bond release is
filed with the
director secretary, he or she shall notify the
municipality in which a surface-mining operation is located by
registered or certified mail at least thirty days prior to the
release of all or a portion of the bond.
(f) Any person with a valid legal interest which is or may be
adversely affected by release of the bond or the responsible
officer or head of any federal, state or local governmental agency
which has jurisdiction by law or special expertise with respect to
any environmental, social or economic impact involved in the
operation, or is authorized to develop and enforce environmental
standards with respect to the operations, has the right to file
written objections to the proposed bond release and request a
hearing with the
director secretary within thirty days after the
last publication of the permittee's advertisement. If written
objections are filed and a hearing requested, the
director
secretary shall inform all of the interested parties of the time
and place of the hearing and shall hold a public hearing in the
locality of the surface-mining operation proposed for bond release
within three weeks after the close of the public comment period.
The date, time and location of the public hearing shall also be advertised by the
director secretary in a newspaper of general
circulation in the same locality.
(g) Without prejudice to the rights of the objectors, the
applicant, or the responsibilities of the
director secretary
pursuant to this section, the
director secretary may hold an
informal conference to resolve any written objections and satisfy
the hearing requirements of this section thereby.
(h) For the purpose of the hearing, the
director secretary has
the authority and is hereby empowered to administer oaths, subpoena
witnesses and written or printed materials, compel the attendance
of witnesses, or production of materials, and take evidence,
including, but not limited to, inspections of the land affected and
other surface-mining operations carried on by the applicant in the
general vicinity. A verbatim record of each public hearing
required by this section shall be made and a transcript made
available on the motion of any party or by order of the
director
secretary at the cost of the person requesting the transcript.
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(NOTE: The purpose of this bill is to bring the appeal portion
of West Virginia's mining program into compliance with federal
requirements.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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